BFV Perspectives, BFV Videos, Corporate Matters, | Mar 05, 2019

Copyright Registration Required to Sue? The Supreme Court Clarifies

The Law is Clarified

Registration of a copyright must be completed before suing for infringement.  This was the recent unanimous ruling of U.S. Supreme Court. The high court’s ruling in  Fourth Estate Public Benefit Corp. v., LLC, et al. resolves a long-running question in copyright litigation: when exactly can a copyright lawsuit commence?  

Previously, there was a spilt in the U.S. Circuit Courts, with some circuits following the “application approach” where legal action could commence upon submission of the application for registration and other circuits following the “registration approach” where legal action could commence only upon completion and actual registration of the copyright.  The high court definitively resolved this question in favor of the “registration approach”. 

The Ruling Explained

In the case, Fourth Estate, an independent news organization, licensed its content to  When terminated the arrangement but allegedly failed to remove Fourth Estate’s articles from its website, Fourth Estate filed suit after applying for copyright registration but before completion of the registration process.  Following the “registration approach”, the Eleventh Circuit affirmed the dismissal of the lawsuit, noting that “filing an application does not amount to registration.”

The Supreme Court agreed with the Eleventh Circuit’s decision.  In the opinion written by Justice Ginsburg, the court concluded that the “registration approach” is “the only satisfactory reading” of the relevant section of the Copyright Act. Justice Ginsburg noted that Congress previously considered but declined to adopt a proposal to allow the filing of a lawsuit immediately upon submission of the application.

The Significance of the Ruling

This decision is significant for a number of reasons.  Perhaps most significantly, it provides clarity to a long-unsettled dispute in copyright litigation.  It also raises concerns over delays in a copyright owner’s ability to immediately file suit upon discovery of an infringement and the submission of an application for registration.  This is particularly so given that copyright registration processing times have increased from weeks to months over the years. 

Justice Ginsberg acknowledged the concern over delays but stated that such delays appear to be due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”  That concern does not allow the court to revise “congressionally composed text.”

This decision also serves as a reminder of the importance of registering a copyright protected work as early as possible.  In addition to now being a prerequisite to filing an infringement action in all jurisdictions, registration confers a number of benefits on the owner:

  • Registration establishes a clear public record of the work;
  • If registered within 5 years of publication, registration establishes prima facie evidence in court of the validity of the copyright;
  • If registered within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees are available;
  • Registration allows the owner of the work to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

It is important for owners of copyright protected works to consider registering more of their works earlier, especially for those works that are likely to be subject to infringement.

BFV Perspectives, BFV Videos, Corporate Matters, | Mar 05, 2019
Daniel H. Park
Daniel H. Park

Work hard at work worth doing. This is what drives Daniel Park in every aspect of his life. At Berman Fink Van Horn, Daniel demonstrates this in everything he does.